CJI2d[NY] Penal Law § 130.30 (6)

The (specify) count is Rape in the Second Degree.

Under our law, a person is guilty of Rape in the Second Degree when he or she engages in anal sexual contact with another person who is incapable of consent by reason of being:

Select appropriate alternative:

mentally disabled

mentally incapacitated.

The following terms used in that definition have a special meaning:

ANAL SEXUAL CONTACT means conduct between persons consisting of contact between the penis and anus.¹

It is an element of this crime that the anal sexual contact takes place without consent.² Anal sexual contact takes place without a person's consent when that person is deemed by law to be incapable of consent. Under our law, a person is deemed INCAPABLE OF CONSENTING to anal sexual contact when that person is:

Select appropriate alternative:

mentally disabled

mentally incapacitated.³

Select appropriate definition:

MENTALLY DISABLED means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.⁴

[Add if applicable:

It is a defense to this charge that the defendant was married to the victim.⁵ "Married" means the existence of the relationship between the defendant and the victim as spouses which was recognized by law at the time of the alleged commission of this charge crime.⁶]

MENTALLY INCAPACITATED means that a person is rendered temporarily incapable of appraising or controlling his or her conduct owing to the influence of a narcotic or intoxicating substance administered to him or her without his or her consent, or to any other act committed upon him without his or her consent. ⁷

Thus, the law deems anal sexual contact with such a person to be without that person's consent, even if in fact that person did consent.

In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, (both/each) of the following (two/three) elements:

1. That on or about (date), in the county of (County) the

the defendant (defendant’s name), engaged in anal sexual contact with (complainant’s name); and,

2. That (complainant’s name) was incapable of consent by reason of being

Select appropriate alternative:

mentally disabled

mentally incapacitated

[Add if applicable:

3. That the defendant was not married to (name of complainant).]

If you find the People have proven beyond a reasonable doubt [both / each] of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt [either one / any one or more] of those elements, you must find the defendant not guilty of this crime.

NOTE: If the affirmative defense set forth in Penal Law § 130.10 (1) applies, omit the final two paragraphs of the above charge, and substitute the applicable charge in the “additional charges” section from the end of this article.

NOTE: Where lack of consent results solely from incapacity to consent because of the alleged victim's mental disability or mental incapacity, a charge on corroboration is required, and that charge is in the “additional charges” section of this article. Penal Law §